Sri Lanka Law Reports
 1 Sri L.R
THE ATTORNEY-GENERALCOURT OF APPEALNANAYAKKARA, J. ANDABEYRATNE, J.
C. ANURADHAPURA 80/2000DECEMBER 12, 2003 ANDFEBRUARY 9, 2004 ANDMARCH 25, 2004
Penal Code, sections 32 and 356 – Absence of formal adoption of proceedingsby succeeding judge – Is it fatal ? – Violation of a fundamental procedure – Re-trial 12 years after the incident – Is it just ?
The trial judge who finally concluded the trial had failed to formally adopt theproceedings held before his predecessor. This is a violation of a fundamen-tal procedural requirement which justifies a re-trial in the interests of justice.
Per Nanayakkara, J.,
“Ordering a re-trial against the accused-appellant who had been under thestrain of a criminal charge poised over his head for such a long period of time-15 years – would be resulting in causing irremediably detrimental conse-quences and disorganisation to his family”
Ratnayake v the Attorney-General (Nanayakkara, J.)
APPEAL from the judgment of the High Court of Anuradhapura.
Case referred to:
1. Karunaratne v State – 78 NLR 413Dr. Ranjith Fernando with Harshini Gunawardena for accused-appellant.Shavindra Fernando, Senior State Counsel for Attorney-General.
May 20, 2004NANAYAKKARA, J.,
In this case the accused-appellant along with another was charged 01with having abducted.one K.P. Rupasinghe with the intention of secret-ly and wrongfully confining him, an offence punishable under section356 of the Penal Code.
The accused-appellant and the other accused faced the charges onthe basis of their culpability under section 32 of the Penal Code and atthe end of the trial, the accused-appellant was found guilty of thecharge preferred against him and sentenced to 4 years rigorous impris-onment and a fine of Rs. 2000/-. The other accused who faced thecharge along with the accused-appellant was acquitted at the end of 10
At the hearing of the appeal the learned Counsel drew the attentionof this court to the non compliance of certain procedural requirementsthat should have been observed in the conduct of the trial. He particu-larly referred to the absence of formal adoption of proceedings heldbefore the commencement of proceedings by the trial Judge whoeventually convicted the accused-appellant.
As rightly pointed out by the learned Counsel persual of the pro-ceedings makes it amply clear that the trial Judge who finally conclud-
ed the trial had failed to formally adopt the proceedings of his prede-cessor.
Sri Lanka Law Reports
 1 Sri L.R
This I think is a violation of a fundamental procedural requirementwhich justifies a re-trial in the interests of justice.
Nevertheless this court desists from adopting such a procedure inview of certain special circumstances to which the learned Counselhas referred to in his submissions.
The incident in respect of which the accused-appellant was con-victed had occurred in the year 1989 and it was only 10 years after theincident that a formal complaint had been made. There had been onlya dock identification of the accused-appellant which had been made 12 30years after the incident.
Therefore ordering a re-trial against the accused-appellant who hadbeen under the strain of a criminal charge poised over his head forsuch a long period of time would be resultant in causing irremediablydetrimental consequences and disorganization to his family.
In this connection observations made by His Lordship JusticeRajaratnam in the case of Karunaratne v Stated
“When a deserving conviction and sentence have to be con-firmed 10 years after the proved offence the Judge cannotdisregard the serious consequences and disorganisation40
that it can cause to the accused’s family. Therefore the delayof 10 years to finally concluded the case is a very relevantcircumstance to be taken into consideration and in the cir-cumstances of the case a suspended sentence was consid-ered appropriate".
Therefore we substitute a sentence of 2 years R.l. in place of 4years R.l. imposed on the accused-appellant by the trial Judge andsuspend the sentence for 10 years. This sentence in our view wouldmeet the ends of justice.
Subject to this variation the appeal stands dismissed.so
ABEYRATNE, J.I agree
RATNAYAKE v. THE ATTORNEY -GENERAL